Appeal by defendants from order entered 9 July 2002 by the
Full Commission of the North Carolina Industrial Commission. Heard
in the Court of Appeals 15 October 2003.
Kathleen Shannon Glancy, P.A., by Terrie Haydu, for plaintiff-
appellee.
Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Clayton M.
Custer, for defendants-appellants.
MARTIN, Judge.
Defendants appeal from an order of the North Carolina
Industrial Commission dismissing their appeal from an opinion and
award of a deputy commissioner awarding plaintiff-employeecompensation. The procedural history leading to this appeal is
summarized as follows: Plaintiff-employee claimed an injury to his
back sustained in the course and scope of his employment with
employer-defendant. Defendants denied the claim. The matter was
heard by a deputy commissioner, who entered an opinion and award
concluding that plaintiff had suffered “an injury by accident
arising out of and in the course of his employment in the nature of
a specific traumatic incident to his back” and awarding benefits
for disability and medical expenses.
Defendants gave notice of appeal to the Full Commission.
Before the case was calendared for hearing by the Full Commission,
plaintiff-employee moved to dismiss the appeal on grounds that
defendants had not given notice of appeal within the time allowed
by G.S. § 97-85. The Commission's chairman entered the following
order:
The undersigned having reviewed plaintiff's
motion and defendant's response and having
found that defendant received notice of Deputy
Commissioner Ford's Opinion and Award on
December 3, 2001, and that the Industrial
Commission received defendants' notice of
appeal of said Opinion and Award on December
17, 2001;
It is therefore ORDERED that plaintiff's
motion to dismiss defendants' appeal to the
Full Commission for failure to file a notice
of appeal within fifteen (15) days of receipt
of the notice of the Opinion and Award of the
deputy commissioner as required by N.C. Gen.
Stat. § 97-85 and Moore v. City of Raleigh,
135 N.C. App. 332, 520 S.E.2d (sic)(1999) is
hereby DENIED.
Plaintiff-employee filed a motion for reconsideration, directed to
the chairman, which was also denied. Upon hearing defendants' appeal, the Commission made findings
of fact and based on those findings concluded that defendants'
notice of appeal had not been timely and, therefore, it had no
jurisdiction to consider the appeal. The Commission ordered
defendants' appeal dismissed. Defendants have appealed the order
of dismissal to this Court.
_________________________
[1] First we must consider the very narrow issue presented by
defendants' second assignment of error: whether the panel of the
Commission to which defendants' appeal was assigned had authority
to dismiss the appeal. Citing the rule well-established by North
Carolina case law that “one superior court judge cannot rectify
what may seem to be legal errors by another in the same case,”
State v. Eason, 336 N.C. 730, 740, 445 S.E.2d 917, 923 (1994),
cert. denied, 513 U.S. 1096 (1995), defendants argue that the panel
of the Commission to which the case was assigned had no authority,
after the chairman had denied plaintiff's motion to dismiss, to
thereafter dismiss the appeal for lack of jurisdiction due to the
untimely notice. We disagree.
Unlike the superior court, the North Carolina Industrial
Commission is not a court of general jurisdiction; the Commission
is a quasi-judicial administrative board created by the legislature
to administer the Workers' Compensation Act and has no authority
beyond that provided by statute.
Hogan v. Cone Mills Corp., 315
N.C. 127, 137-38, 337 S.E.2d 477, 483 (1985). N.C. Gen. Stat. §
97-77 (2003) provides that the Commission shall consist of seven
members, one of whom is designated by the governor as chairman. “The chairman shall be the chief judicial officer and the chief
executive officer of the Industrial Commission . . . .” N.C. Gen.
Stat. § 97-77(b)(2003). Although composed of seven members, the
Full Commission acts through three member panels when reviewing
awards by hearing commissioners or deputy commissioners. N.C. Gen.
Stat. § 97-85 (2003). The Commission has no authority to act
en
banc. Sims v. Charmes/Arby's Roast Beef, 142 N.C. App. 154, 158,
542 S.E.2d 277, 281,
disc. review denied, 353 N.C. 729, 550 S.E.2d
782 (2001).
The Commission is also authorized by N.C. Gen. Stat. § 97-
80(a) (2003) to promulgate its own rules to carry out the
provisions of the Workers' Compensation Act, and it has exercised
such authority by adopting the Workers' Compensation Rules of the
North Carolina Industrial Commission.
See Annotated Rules of North
Carolina (2004). Rule 609 (1)(c) of the Workers' Compensation
Rules provides:
Motions filed after notice of appeal to the
Full Commission has been given but prior to
the calendaring of the case shall be directed
to the Chair of the Industrial Commission.
Workers' Comp. R. Of N.C. Indus. Comm'n 609(1)(c), 2004 Ann. R.
(N.C.) 901, 919. In this case, plaintiff's motion to dismiss
defendants' appeal from the opinion and award of the deputy
commissioner was directed to the Commission's chairman, as required
by the rule, who denied the motion. Plaintiff's motion for
reconsideration was likewise directed to the Commission's chairman
and was denied.
Workers' Compensation Rule 703(1) provides, however, that
“Orders, Decisions, and Awards made in a summary manner, withoutdetailed findings of fact . . . may . . . be raised and determined
at a subsequent hearing.” Workers' Comp. R. Of N.C. Indus. Comm'n
703(1), 2004 Ann. R. (N.C.) 901, 925. The order by Chairman
Lattimore denying plaintiff's motion to dismiss for lack of
jurisdiction was just such a summary order. Therefore, we hold
that the Full Commission panel had the authority, under the
Commission's own rules, to reconsider the issue of jurisdiction
raised by plaintiff's motion and, upon proper findings of fact and
conclusions of law, to enter an order with respect to such issue.
Defendant's assignment of error to the contrary is overruled.
[2] Defendants also contend, by their first assignment of
error, that even if the Commission had authority to reconsider the
issue, the Commission erred in dismissing the appeal because their
application for review was timely. N.C. Gen. Stat. § 97-85 (2003)
requires that an application for review of an opinion and award of
a hearing commissioner or deputy commissioner must be made “within
15 days from the date when the notice of award shall have been
given. . . .” This Court has held that the 15 day period commences
on the date the appealing party receives notice of the award, and
that an application for review is deemed made when it is mailed to
the Commission by the appealing party.
Hubbard v. Burlington
Industries, 76 N.C. App. 313, 315-16, 332 S.E.2d 746, 747 (1985).
In dismissing defendants' appeal, the Commission found as
facts,
inter alia:
1. Deputy Commissioner Ford filed his Opinion
and Award in this claim on November 29, 2001,
at which time it was served on counsel of
record for the parties;
2. Defendants filed their notice of appeal
from Deputy Commissioner Ford's Opinion and
Award on December 27, 2001, in a letter from
Clayton M. Custer from the firm of Womble,
Carlyle, Sandridge & Rice dated December 17,
2002. The Docket Director for the Industrial
Commission acknowledged receipt of defendant's
notice of appeal in a letter dated December
29, 2001.
. . .
4. The attorney of record for this case was
Laura M. Wolfe with the office of Womble,
Carlyle, Sandridge & Rice. Ms. Wolfe left the
office of Womble, Carlyle, Sandridge & Rice on
May 1, 2001; however this file remained with
Womble, Carlyle, Sandridge & Rice. On July
25, 2001, Clayton M. Custer of the office of
Womble, Carlyle, Sandridge & Rice relocated
from their Winston-Salem office to their
Greenville, South Carolina office . . . . The
Opinion and Award of Deputy Commissioner Ford
was faxed to the Winston-Salem office of
Womble, Carlyle, Sandridge & Rice to the
attention of Laura M. Wolfe. The mailroom of
the Winston-Salem office of Womble, Carlyle,
Sandridge & Rice on November 29, 2001,
attempted to forward the Opinion and Award to
Ms. Wolfe at her new office location. Clayton
M. Custer of the office of Womble, Carlyle,
Sandridge & Rice did not receive the Opinion
and Award until December 3, 2001.
. . .
6. The Full Commission finds that defendants'
counsel, Womble, Carlyle, Sandridge & Rice,
received Deputy Commissioner Ford's Opinion
and Award on November 29, 2001, by fax, and
that defendants' counsel did not file the
notice of appeal until it was mailed on
December 17, 2001. The Full Commission notes
that there is no record of a change of the
lead attorney from Ms. Wolfe to Mr. Custer and
that there was no notice of a change of
address for the handling office from Winston-
Salem to Greenville, South Carolina.
Defendants' counsel had sufficient time, upon
receipt of the Opinion and Award, to file a
timely notice of appeal. Counsel's failure to
do so was a result of a misapprehension of
law.
Based on those findings, the Commission concluded that defendants'
notice of appeal was not timely, and thus, it had no jurisdiction
to consider defendants' appeal.
Defendant has not assigned error to any of the foregoing
findings of fact. Generally, defendants' failure to assign error
to the findings renders them conclusive on appeal.
McLean v.
Roadway Express, Inc., 307 N.C. 99, 102-103, 296 S.E.2d 456, 458
(1982). However, this rule is excepted for questions of
jurisdiction.
Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 705,
304 S.E.2d 215, 218 (1983). “Findings of jurisdictional fact by
the Industrial Commission . . . are not conclusive upon appeal even
though supported by evidence in the record.”
Id. When
jurisdiction is challenged, the reviewing court “has the duty to
make its own independent findings of jurisdictional facts from its
consideration of the entire record.”
Id.;
Terrell v. Terminex
Servs., 142 N.C. App. 305, 307, 542 S.E.2d 332, 334 (2001).
Upon our consideration of the entire record, we hold that
defendants received notice of Deputy Ford's opinion and award, by
fax, on 29 November 2001,
see In re Appeal of Intermedia
Communications, Inc., 144 N.C. App 424, 426-27, 548 S.E.2d 562, 564
(2001) (notice of appeal to North Carolina Property Tax Commission
may be perfected by fax), and that defendants' application for
review was made upon its mailing on 17 December 2001. Notice of
Deputy Commissioner Ford's opinion and award was served upon
defendants' counsel, Womble, Carlyle, Sandridge & Rice, P.L.L.C.,
at the address shown on defendants' previous filings with the
Commission. Workers' Compensation Rule 614 provides that aftercounsel files a notice of appearance with the Commission, all
notices thereafter required to be served on a party are to be
served on counsel for the party. Workers' Comp. R. of N.C. Indus.
Comm'n 614(1), 2004 Ann R. (N.C.) 901, 923. Deputy Commissioner
Ford complied with this rule and service was accomplished when the
notice was received by Womble, Carlyle, Sandridge, & Rice,
P.L.L.C., not when the law firm routed it to the individual
attorney within the firm to whom the case had been assigned. We
therefore conclude, as did the Commission, that timely notice or
appeal (application for review) was not given within 15 days
pursuant to G.S. § 97-85 and thus, the Commission had no
jurisdiction to review the deputy commissioner's opinion and award.
See Moore v. City of Raleigh, 135 N.C. App. 332, 334, 520 S.E.2d
133, 136 (1999),
disc. review denied, 351 N.C. 358, 543 S.E.2d 131
(2000) (Industrial Commission has no jurisdiction to review an
opinion and award that is not timely appealed pursuant to G.S. §
97-85).
Defendants also argue their failure to make a timely
application for review was due to “excusable neglect” and that the
Commission erred in failing to so rule. The Commission concluded:
2. Although the Commission has the power to
remedy an error based on excusable neglect of
counsel,
Hogan v. Cone Mills, 315 N.C. 127,
337 S.E.2d 477(1985), defendants' counsel's
misapprehension of law in this case does not
constitute excusable neglect. Defendants'
failure to file a timely notice of appeal,
therefore, should not be excused under the
doctrine of excusable neglect.
Defendants' first assignment of error, by which they contend the
Commission erred in dismissing the appeal because their applicationfor review was timely, is not sufficient to raise the issue of
whether their failure to file a timely application for review was
due to excusable neglect. Therefore, their argument based on
excusable neglect is not properly before us. N.C. R. App. P.
10(a). Assuming,
arguendo, that the issue had been properly
preserved by an assignment of error, an attorney's misapprehension
of law, as found by the Commission in this case, is not grounds for
relief due to excusable neglect.
See Briley v. Farabow, 348 N.C.
537, 546, 501 S.E.2d 649, 655 (1998) (“A showing of carelessness or
negligence or ignorance of the rules of procedure” does not
constitute excusable neglect).
The Order dismissing defendants' appeal to the Full Commission
from the 29 November 2001 Opinion and Award of the deputy
commissioner is affirmed.
Affirmed.
Judges STEELMAN and LEVINSON concur.
*** Converted from WordPerfect ***